Daniel Henry Mensah and Regina Odoom v Ellen Worglo

The Plaintiffs aver that on 1st February, 2014, they acquired the subject matter in dispute from the Atowe family of Atoman near Amasaman or Abola. That an indenture was executed in their favour and immediately went into possession by placing stones, sand and blocks on the said land.

The Plaintiffs further averred that they dug a trench, put footings for two (2) bedrooms, toilet, bath and kitchen on the land. That upon reaching the window level, the Defendant came from nowhere and broke down their entire development in 2016. That they ignore the Defendant and reconstructed their structure again to window level and again the Defendant entered their land and used their building materials deposited on the land to continue the structure they had reconstructed.

That they reported the conduct of the Defendant to the police but the Defendant is still continuing with her trespassory acts. That their grantor has a judgment against the Defendant’s grantor. Thus, they instituted this action against the Defendant for the following reliefs.

1. A declaration that all that piece and parcel of land and being at Atoman near Amasaman and bounded on the North by the Lessor’s land measuring 51.5 feet more or less on the East by Lessor’s land measuring 73.4 feet more or less on the South by lessor’s land measuring 70.2 feet more or less on the West by a proposed road measuring 63.7 feet more or less and containing an approximate area of 0.08 acre more or less and particularly delineated on a site plan is the bonafide property of the Plaintiffs.

2. Special damages of Sixteen Thousand Ghana Cedis (GH¢16,000.00).

3. General damages.

4. Perpetual injunction

5. Costs.

The Defendant denies the assertions of the Plaintiffs and avers that her sister and herself acquired the subject matter in 2004 from one Comfort Dodoo, head of Mrs. Mercy Dodoo family. The Defendant per her description of the subject matter avers that, it is situated at Pokuase-North.

According to the Defendant, upon acquisition of the land, she went into immediate possession by putting footings on the land and started to dig a foundation for her house only to be stopped by officers of Town and Country Planning, Ga-West District Assembly, Amasaman.

That she later acquired the building permit sometime in 2009 and continued her construction by digging a foundation for a two (2) bedroom house but later raised a single room on the land in 2015 and built same up to the lintel level. That one Asafoatse Kotey came on the land to destroy her construction and also seized the tools being used by the workers on the Defendant’s land. That at the police station, the said Asafoatse claimed to be the owner of the land as he has acquired a judgment against the Defendant’s grantor. That she had been in possession of her land for about ten (10) years before the Plaintiff alleged. That her land is different from the land being described by the Plaintiffs.

The Defendant later amended her Defence and claim that it came to their attention that the Atowe family had judgment against her grantor so she went to them to regularized her deed. The said regularization was done in 2019. That, the Atowe family recognizes her as the owner of the land in dispute as she atones tenancy to them. The Defendant thus counterclaimed for the following;

a) A declaration of title to all that piece or parcel of land situate lying and being at Pokuase- North in the Ga West District containing an approximate area of 0.08 acre or 0.03 hectare more or less and bounded on the North-West by lessor’s land measuring 0.51.71 feet more or less on the South-East by Lessor’s land measuring 0.48.4 feet more or less on the South-

West by lessor’s land measuring 062.7 feet more or less on the North-East by proposed road measuring 065.1 feet more or less which said piece of land is more particularly delineated on the plan.

b) Recovery of possession.

c) Interlocutory injunction restraining the Plaintiff, their agents, assigns, privies, workmen, servants and all people claiming title through the Plaintiffs from developing, interfering and laying any claim to the Defendant’s land.

d) Perpetual injunction restraining the Plaintiffs, their agents, assigns, privies, workmen, servants and all people claiming title through the Plaintiffs from developing, interfering and laying any claim to the Defendant’s land.

e) General damages for trespass.

f) Costs including legal fees.

At Directions, the Issues adopted for trial were as follows;

i. Whether or not the Atowe family are allodial owners of the land, subject matter of this dispute?

ii. Whether or not Madam Comfort Dodoo head of Mrs. Mercy Dodoo family are the allodial owners of the land, subject matter of this dispute?

iii. Whether or not Madam Comfort Dodoo head of Mrs. Mercy Dodoo family was alive on the second day of August 2004?

iv. Whether or not the Plaintiffs are entitled to the reliefs endorsed on their Writ of Summons?

v. Whether or not the Defendant is entitled to her Counterclaim?

vi. Any other issue(s) arising out of the pleadings.

vii. Whether or not the Defendant was in possession and occupation of the land in dispute as at 2004?

viii. Whether or not the Plaintiffs were part of the persons in possession of the Atowe family land?

ix. Whether or not the Atowe family has alienated the land in dispute to the Plaintiffs and recognizes the Plaintiffs as their grantees?

x. Whether or not the Plaintiffs’ land is the same as the land being occupied by the Defendant?

xi. Whether or not the Defendant has trespassed on Plaintiffs’ land?

The subject matter in dispute is a piece of land as differently described by the Parties. Both Parties initially had different grantors but the Defendant subsequently denounced her previous grantor and atoned tenancy to the Plaintiffs alleged grantor, that is the Atowe family.

In the case of Antie & Adjuwah v. Ogbo [2005-2006] 36 GMJ157 (SC), it was reechoed that, the law is that a tenant or licensee who denies the title of his or her licensor or landlord either by claiming that title to the subject matter is vested in himself or herself or someone else forfeits his or her interest. Thus, the Defendant looses any interest she may have derived from her previous grantor Comfort Dodoo, head of Mrs. Mercy Dodoo family if any.

The evidence led by both Parties clearly establish that the Atowe family had judgment against the Dodoo family. Thus, Issues ‘1’ and ‘2’ are no more issues for trial for same to be discussed by this Honourable Court as it is on record that the Atowe family of Accra instituted an action against the Dodoo family at the High Court sometime in 1997 and judgment entered in favour of the Atowe family in 2012 and same endorsed by the Court of Appeal in 2019.

The Plaintiffs alleged that they went into possession of the subject matter in 2014 and the Defendant from nowhere trespassed on their land in 2015. The Defendant also alleges that she acquired the subject matter in 2004 from the Dodoo family in 2004 from Comfort Dodoo the then head of family through her daughters and immediately entered that subject matter by depositing building materials on same, digging a trench and made footings.

It is very interesting to note that both Parties claim to have been given vacant possession and entering into possession of the subject matter forthwith upon acquiring same. Both Parties also alleged erecting a structure which same was destroyed by the opponent and further alleged roofing the same structure.

It is also interesting to note that both Parties per their reliefs are praying for recovery of possession suggesting that, their opponent is in possession of the subject matter in dispute. Thus, the first issue for this Court to determine is whether or not the Plaintiff’s land is the same as the land being occupied by the Defendant.

Section 12 of the Evidence Act 1975 (NRCD 323) provides that;

“(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.

(2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.”

Section 10(1) of the Evidence Act 1975 (NRCD 323) provides that,

“For the purposes of this decree the burden of persuasion means the Obligation of a Party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court.”

According to Section 11(4) of the Evidence Act 1975, (NRCD 323),

“… the burden of producing evidence requires a Party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence”.

Both Parties have the burden to prove their claims against their opponents which same has been denied by the preponderance of probabilities as the Defendant also has a Counterclaim before this Court.

The Plaintiffs describe the subject matter as:

“all that piece and parcel of land and being at Atoman near Amasaman and bounded on the North by the Lessor’s land measuring 51.5 feet more or less on the East by Lessor’s land measuring 73.4 feet more or less on the South by lessor’s land measuring 70.2 feet more or less on the West by a proposed road measuring 63.7 feet more or less and containing an approximate area of 0.08 acre more or less and particularly delineated on a site plan is the bonafide property of the Plaintiffs.”

While the Defendant describes the subject matter as;

“all that piece or parcel of land situate lying and being at Pokuase-North in the Ga West District containing an approximate area of 0.08 acre or 0.03 hectare more or less and bounded on the North-West by lessor’s land measuring 0.51.71 feet more or less on the South-East by Lessor’s land measuring 0.48.4 feet more or less on the South-West by lessor’s land measuring

062.7 feet more or less on the North-East by proposed road measuring 065.1 feet more or less which said piece of land is more particularly delineated on the plan.”

During Directions stage, the Court differently constituted did not make any order for a composite plan to be drawn but the Court is of the view that the evidence before it can assist it to decide whether the subject matter as described by the Parties are one and same.

The Plaintiffs tendered Exhibit ‘D’ which is an indenture executed between Deitse Djanie head/lawful representative of the Nii Ato family of Atoman near Amasaman and themselves. The site plan attached to same has its locality at Atoman in the Ga West District.

The Defendant also tendered Exhibit ‘8A’ which is a site plan with locality Pokuase-Atoman in the Ga West District. The coordinates on both site plans are identical showing clearly that the subject matter is in the same place or area that is Atoman and not Pokuase-North is stated by the Defendant per her first site plan attached to her indenture from Comfort Dodoo. The site plan of the Plaintiffs is dated 1st January, 2013 whiles the Defendant’s own is dated 17th August, 2020.

From the coordinates on the site plans, the Court is satisfied that the subject matter is one and same especially so when both Parties are not claiming from the same grantor.

With this issue of the location of the land dealt with, the next issues for consideration are, whether or not the Defendant was in possession and occupation of the land in dispute as at 2004 and whether or not the Plaintiffs were part of the persons in possession of the Atowe family land.

In the case of Zambrama v. Segbezi [1991] 2 GLR 221 @ 246, it was held that;

“A person who makes an averment or assertion, which is denied by his opponent, has a burden to establish that his averment or assertion is true. And he does not discharge this burden from which the fact or facts he asserted can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden.”

The onus will first be on the Plaintiffs to prove their claim against the Defendant, especially when same has been denied by the Defendant. The Defendant also has the burden to prove her claim against the Plaintiffs with regard to assertions denied by them as she also has a Counterclaim and she is the Plaintiff in her Counterclaim.

In Awuku v. Tetteh [2011] 1 SCGLR 366, the Court held that,

“In an action for declaration of title to land, the onus was heavily on the Plaintiff to prove his case; he could not rely on the weakness of the Defendant’s case. He must, indeed, show clear title.”

The Plaintiffs alleged that they acquired the subject matter in 2014 and went immediately into possession.

The Defendant alleges that she acquired the land in 2004 and immediately went into possession of the subject matter in dispute suggesting that she was already in possession at the time the Plaintiffs claimed to have entered possession of the land. The onus is on the Defendant to prove that as at 2004, she was indeed in possession of the subject matter.

The Defendant alleges that her sister, Matilda Ameley Worglo and herself acquired the subject matter from one Vivian Ankrah in the name of her mother Madam Comfort Dodoo, head of Mrs. Mercy Dodoo family and they were given a deed of lease dated 2nd August, 2004 which she tendered in evidence as Exhibit ‘1’. The site plan attached to Exhibit ‘1’ as

its locality at Pokuase-North but the Court has earlier indicated that, the evidence shows that the land is located at Atoman.

The Defendant further tendered a search report marked Exhibit ‘2’ to show a search report which captured that the subject matter acquired by her sister and herself was owned by Mrs. Amponsah Dodoo. The said search report is dated 2nd November, 2009.

The Defendant tendered Exhibit ‘3’ series which are receipts of building permits issued in 2009.

The Defendant further testified that she eventually continues with the construction of her structure which she erected a single room on the structure in 2015 which one Asafoatse Kotey demolished same.

The Plaintiffs alleged they entered into possession in 2014 and it was when they had built two (2) rooms, a hall, toilet, bathroom, kitchen and a porch to window level that the defendant entered unto the land and demolished the entire structure.

The Plaintiffs tendered Exhibit ‘A’ Series to show the blocks they allegedly bought and deposited on the land, Exhibit ‘B’ series to show the construction of the structure and Exhibit ‘C’ series to show the structure the Defendant allegedly demolished. The Plaintiffs also tendered Exhibit ‘D’ which is the indenture executed in their favour by the Atowe family dated 1st February, 2014.

Both Parties thus alleges they were in possession of the land and the opponent demolished their structure. The Defendant’s first witness, Sampson Kokoda (PW1) testified that he was contracted by the Defendant to build a single room on her plot in 2019. That, the first time he went on the land, he saw footings which were very old on the land.

That he constructed the single room to lintel level and before he could continue with the building, the Plaintiff came unto the land and put a wooden kiosk on the land. Because they were working, they moved the kiosk aside and continue with their work. That they further built a hall in addition to the single room. He has never used any materials that belong to the Plaintiff for the structure.

DW1 further testified that, because he lives close to the land, he saw Asafoatse Kotey and the Plaintiffs come to the land with a Tacoma vehicle to remove all the blocks they deposited on the land. That he continued to build one bedroom, kitchen, toilet and bath in addition to the one (1) bedroom and hall he had already constructed. That he knows the Defendant to be the owner of the land.

The Defendant further called one Ahmed Armah Agbo to come testify on her behalf as her 2nd witness (DW2). DW2 testified that he is a member of the Atowe family. That in 1997, their family instituted an action against the Defendant’s grantor Comfort Dodoo and obtained judgment from the High Court in 2012 and Court of Appeal judgment in 2019.

After his family obtained judgment at the High Court in 2012, the Defendant was on the land in dispute and had some footings on the land. That their family has not sold any land to the Plaintiffs but rather it is Asafoatse Kotey who sold same to the Plaintiffs and he is not a member of their family. That the Plaintiffs only claimed the land belongs to them in 2019 to the best of his knowledge.

The Plaintiffs also called the said Asafoatse Kotey to testify on their behalf as PW1. PW1 testified that he is a principal elder of the Atowe family. One Benjamin Nikoi Kotey (PW2) also came to testify for the Plaintiffs and also claims to be a member of the Atowe family. The Plaintiffs’ evidence is that they acquired the land from the head of family of Atowe family by name Deitse Djanie.

Per the evidence before the Court, the Court find as fact that, the Defendant with her sister acquired the land in dispute from the children of the late Comfort Dodoo who was the head of family of Mrs. Mercy Dodoo family. That after acquiring same, in 2004 she made some footings on same and only went back to construct her structure in 2019 and not 2015. That at the time the Defendant acquired the subject matter, there was a suit pending at the High Court which was commenced in 1997. That there was also an injunction order restraining Parties from interfering with the subject matter.

The children of the late Comfort Dodoo knew they had no capacity to alienate the land that is why they made an indenture in the name of their late mother. That the record clearly shows that at the time Exhibit ‘1’ was executed, Comfort Dodoo was deceased as far back 2001. The dead and the living have no business in entering an agreement so the Court finds that the said deed of lease executed for the Defendant was fraudulently made and thus cannot transfer title to the Defendant.

The High Court in 2012 gave judgment in favour of the Atowe family and the Plaintiffs also acquired the subject matter from the Atowe family per their head of family which the Defendant’s own witness DW2 confirmed was the head of family of Atowe family till he passed on in 2016.

Even though the evidence shows that that the Defendant entered into possession in 2004, possession is a good right till the one with legal title appears. When the Defendant entered into possession with a fraudulent document, it vitiated everything as fraud vitiates everything (see the case of Mass Projects Ltd (No. 2) v. Standard Chartered Bank & Yoo Mart Ltd (No. 2) [2013-2014] 1 SCGLR 309).

The evidence of DW1 also shows that after the Defendant made footings on the land, she went back to construct her building in 2019. At the time he went back in 2019, there was only footings and no structure on the land as claimed by the Plaintiffs.

The Defendant as earlier mentioned denounced the title of her grantor and states that she now renders tenancy to the Atowe family and they have regularized her stay on the land and tendered Exhibit ‘8’ which is an indenture executed in favour of the Defendant by the Atowe family.

So now, the issue is whether or not the Atowe family could alienate the subject matter to the Defendant when they had alienated the same land to the Plaintiffs in 2014. The indenture tendered by the Plaintiffs as proof of their title has not been found to be fraudulently obtained as there is no evidence before the Court proving same. Just making assertion that the Atowe family have not executed any such document is not enough. With fraud, the onus is proof beyond reasonable doubt

Section 13(1) of the Evidence Act, 1975 (NRCD 323) provides that,

“In any civil or criminal action, the burden of persuasion as to the commission by a Party of a crime which is in issue requires proof beyond a reasonable doubt.”

This evidence seems to suggest that the Parties have been battling as to who to have possession of the land by constructing their buildings on same so as to claim ownership of the land but who builds first on a land does not automatically confirm title on the person.

The Atowe family had no capacity to have alienated the land to the Defendant in 2019 when they had done same in 2014 to the Plaintiffs. Thus, this Court enters judgment for the Plaintiffs for the declaration of title of the subject matter and dismisses the case of the Defendant.

The Plaintiffs are praying for special damages of Sixteen Thousand Ghana Cedis (GH¢16,000.00) but failed to prove that indeed the Defendant did demolish their structure or caused such damages. So the Court dismisses their claim for special damages.

The Court has already made findings that the Defendant was first in possession of the land before the Plaintiffs took possession. However, the Defendant wrongly took possession of the subject matter as her grantors had no right to transfer same to her.

That her 2nd grantor could not also have regularized her stay as they had already transferred their interest to the Plaintiffs. Thus, general damages of Ten Thousand Ghana Cedis (GH¢10,000.00) is awarded for the Plaintiffs against the Defendant and costs of Ten Thousand Ghana Cedis (GH¢10,000.00) is also awarded against the Defendant.